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Philosophical Foundations of Contract Law$
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Gregory Klass, George Letsas, and Prince Saprai

Print publication date: 2014

Print ISBN-13: 9780198713012

Published to Oxford Scholarship Online: March 2015

DOI: 10.1093/acprof:oso/9780198713012.001.0001

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Remedies for Breach of Contract

Remedies for Breach of Contract

One Principle or Two?

(p.341) 17 Remedies for Breach of Contract
Philosophical Foundations of Contract Law

Stephen A. Smith

Oxford University Press

This chapter compares two ways of understanding judicial remedies for breach of contract. The first way, the “one-principle model,” supposes that the main remedies for breach, namely in specie orders (for example, specific performance, orders to pay a contractual debt) and damages orders, are alike in that they confirm existing legal duties and, furthermore, in that the duties they confirm are in each case transformed versions of the defendant’s original duty. The second way, the “two-principle model,” accepts the above explanation of in specie orders, but supposes that damages orders are different because they create entirely new duties and, moreover, because these new duties cannot be explained on the same grounds as the defendant’s original duty. In this second view, damages orders differ from in specie orders because they are responses to wrongs, not to rights. The chapter concludes that the two-principle model explains judicial remedies for breach better than the one-principle model.

Keywords:   remedies, contract law, damages

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